constitutional law essay

Dublin Convention and Immigration Law

The Dublin Convention came into force on 1 September 1997, providing criteria for establishing which Member State of the EU is responsible for hearing the asylum application of any given applicant [1] . While this Convention was replaced in 2003 by the Dublin II Convention, for the purposes of this present paper it will be assumed that the Dublin Convention criteria are still operative, today.

The relevant criteria are provided by Articles 4 to 8 of the Convention. By virtue of Article 3(2) of the Convention, these criteria must be applied in the order in which they appear; for example, if a criterion from Article 4 applies and so too does a criterion from Article 5, then the criterion from Article 4 will prevail. [2]

The first level of criteria is provided by Article 4 of the Convention and these apply where the applicant has a spouse or a child, who has qualified for refugee status under Article 1(2) of the United Nations Convention Relating to the Status of Refugees 1951, in the Member State where he wishes to apply for asylum in. [3] ELYAS does not have a qualifying spouse or child in the UK.

The second level of criteria is provided by Article 5 of the 1997 Convention and these apply where the applicant is in possession of a valid visa. [4] While we have been told that ELYAS is in possession of a visa, this visa has been stamped onto a forged passport and, strictly speaking, this fact calls into question the validity of that visa. Nevertheless, it seems that a stamp in a forged or falsified passport is generally accepted as probative evidence; [5] this fact may therefore prove evidential if no other, more persuasive, proof can be adduced.

The third level of criteria is provided by Article 6 of the Dublin Convention which provides, so long as the applicant has not been present in the Member State for more than six months, [6] that, “When it can be proved that an applicant for asylum has irregularly crossed the border into a Member State by land, sea or air, having come from a non-member State of the European Communities, the Member State thus entered shall be responsible for examining the application for asylum." [7] In order to make this assessment, it is necessary for the UK asylum authorities to retrace the itinerary of ELYAS, to determine whether or not he came from another Member State of the EU or from a third country. [8]

We were told ELYAS is ‘Multilingual-speaking,’ eventhough, he appeared mentally disturbed and speaks incoherently, assuming nothing was found on him, confirmation of his nationality will be very difficult [9] . The fact that ELYAS claimed he has European relative and can speak few languages, it is advisable to increase effort to establish if he was an EU citizen who could have relocated and now planning to reacquire his lost nationality. Where this fails, the assessment provisions of the Dublin Convention [10] will apply, this has now been superseded by Dublin II [11] .

On the facts presented it is not possible to make such an assessment—there is too much conflicting evidence; namely, 20 Dutch Guilders, 100 Moroccan Dirhams, a map of Amsterdam, a map of Berlin, a newspaper from Kigali and a ferry ticket, with a cancelled name, from Tangier to Tarifa. Because of the difficulty in proving where an applicant came from this criteria is rarely ever applied successfully. [12]

Where there is valid proof an asylum-seeker illegally crosses through one EU member country’s border or several other countries’s by any means from non-EU member’s, the first entry determines their application for asylum, [13] to prevent multiple asylum applications being made throughout the EU and halting the 'refugees in orbit' phenomenon [14] . But the difficulties in obtaining tangible proof substantially flawed the Convention’s objective in this respect, [15] which places unreasonable delays on claims. [16]

The fourth level of criteria is provided by Article 7 of the Convention. However, for the same reasons as stated above, it will not be possible to identify the “Member State responsible for controlling the entry of the alien," [17] and, therefore, even if all the other conditions of this criteria are met, it would not be possible to determine which Member State ought to be responsible for determining ELYAS’ application.

The final criterion is provided by Article 8 of the Convention which states that, “Where no Member State responsible for examining the application for asylum can be designated on the basis of the other criteria listed in this Convention, the first Member State with which the application for asylum is lodged shall be responsible for examining it." [18] The application of this criterion leads one to the same conclusion as that which must be reached if the probative value of ELYAS’ visa is accepted: the correct place for his application for asylum to be considered is the United Kingdom. [19]

Once removed, there was no system for monitoring what happened to the asylum-seeker. Further, it allowed application of States’ varying national laws, meaning there was still a significant possibility of being returned to the country they had fled from. Additionally, Article 3(5) permitted states to remove asylum-seekers to potentially unsafe non-EU third countries, with no process for challenge. These problems, coupled with concerns about the confidentiality of information exchanged between countries, made the old Convention ‘impracticable and ineffective.’ [20] Such exchanges required by Dublin II are now made using two secure systems: DubliNet and EURODAC. [21]

Under Dublin II [22] , the UK may only return ELYAS to a ‘safe country’ that has an obligation to provide ELYAS asylum, and which can be expected to comply with the requirements of the 1951 Convention [23] . This rule is based on the ‘safe third country’ notion [24] although Dublin II deals with the unfairness of this rule on Southern European countries who take a higher influx of refugees ‘passing through’, by virtue of their geographical location. Thus, a so-called 'Sangatte clause' was included in Dublin II, that absolves Member States of responsibility they would otherwise have had over asylum seekers for whose entry they were responsible, where another Member State is subsequently responsible for their unlawful stay, if the individual had managed to be undetected during a period of at least five months [25] .

ELYAS is therefore entitled, under Article 6 of the Human Rights Act 1998, to have his application determined by a fair and impartial tribunal and to enjoy all of the procedural safeguards that are guaranteed under Article 6(3) of the Act; these include the right to free legal representation [26] and the right to have a translator or interpreter if he cannot understand the language being used [27] (although, it must be noted that to accept an interpreter might lead the authorities to determine his country of origin, which could weaken his claim).

If the UK immigration authorities were to deport ELYAS to Germany without first hearing his application for asylum, then those authorities would be in breach of Article 6 of the Human Rights Act 1998, for it has been held been settled at law that the right to a fair hearing cannot be deemed discharged if no hearing takes place. [28]

If the UK immigration authorities were to deport ELYAS to Germany without first hearing his application for asylum, then those authorities would also be acting in violation of Article 5(1) of that Act which provides not only that, “Everyone has the right to liberty and security of person," [29] but also that, “Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial." [30]

It should also be noted that if ELYAS has a genuine fear that, if he was returned home, he would be subjected to ill-treatment, then he may be able to invoke Article 3 of the Human Rights Act 1998, which provides that, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment." [31] In the case of Chahal v UK [32] it was held that national authorities must act with due diligence when determining whether or not to deport any given immigrant and, where there is a ‘real risk’ that they will suffer inhuman or degrading treatment or punishment as a result of being deported, then they must not be so deported, even if they are believed to represent a threat to national security. It may be sufficient for ELYAS to argue that he has no money to pay for shelter and food and that his home State will not provide him with this welfare if he is returned there by the UK authorities. [33]

Nonetheless Elyas is subject to iminent deportation order [34] to Germany. The question is, therefore, who alternatively could consider Elyas’s asylum application, as (presumably) a ‘third-country national’ [35] . It is presumed that he arrived UK from Germany, an EU country due to the visa on forged German Passport but then, there are traces of via France, (an EU state), and it is possible that he has also crossed the border from Kigali, [36] Morocco (a non-EU state) to Tarifa, [37] with a cancelled name. He has family member in the UK whose location and status is unknown.

For Elyas to be removed, the Secretary of State must certify that Germany, the receiving Member State, has accepted that, under standing arrangements [38] it is the ‘responsible State’ in relation to Elyas’s claim for asylum. Further, the Secretary must certify that, in his opinion, Elyas is not a national or citizen of the member state, and the certificate (to remove) has not been set aside on an appeal. [39] Where the Secretary of State is satisfied that the specified conditions are fulfilled, he is entitled to refuse Elyas’s asylum claim and issue a certificate, without substantive consideration of Elyas’s asylum claim [40] . The UK Home Office will not remove an asylum seeker unless the State receiving them has accepted responsibility [41] . On a separate note: It must be noted that unless the United Kingdom authorities can satisfy the Court of ELYAS’ identity, then they must discharge him in accordance with section 7(4) of the Extradition Act 2003.

In conclusion, ELYAS should not be deported to Germany, or anywhere else, until his application for asylum has been heard by the UK Courts. If his identity cannot be established, then he must be discharged. Appeal against the order would be made under National Immigration and Asylum Act 2002 [42] . If this relates to the ECHR, the relevant provision is s.84(c), or s.84(g) if it relates to the Geneva Convention. Elyas cannot appeal under Section 82 whilst in the UK if the Secretary has already issued a certificate in relation to him; however, if he makes a human rights claim and the Secretary has not certified it to be clearly unfounded [43] , it can be pursued [44] . If a certificate has been made however, this can be challenged by judicial review [45] .

Research Trail:

In conducting the research for this paper, I first consulted the indices of the following works, which I knew from a library database search were relevant to the Dublin Convention and EU law, using the search term ‘Dublin Convention’: Craig and De Burca (2008); Noll (2000); Fraser and Harvey (2004); and, Da Lomba (2004).

These sources each provided some useful guidance on the scope of the criteria under the Dublin Convention. However, despite this guidance, I was unable to determine the significance of the fact that ELYAS’ visa was stamped in a forged passport and therefore decided to perform a Google search, using the search phrase ‘stamp forged falsified passport’. This search led me to Office of the UN High Commissioner for Refugees (2007) which explained that such stamps may still be of probative value, notwithstanding their invalidity.

This author accessed the primary text of the Dublin Convention from the Europa Website (at http://eur-lex.europa.eu) and accessed all other primary legislation using the WestLaw database.

Office of the UN High Commissioner for Refugees, ‘Collection of international instruments and legal texts concerning refugees and others of concern to UNHCR’ (United Nations Publications, New York, 2007).

U Fraser and C J Harvey, ‘Sanctuary in Ireland, perspectives on asylum law and policy’ (Institute of Public Administration, Ireland, 2003).

M-T Gil-Bazo, 'The Practice of Mediterranean States in the context of the European Union's Justice and Home Affairs External Dimension. The Safe Third Country Concept Revisited' (International Journal of Refugee Law IJRL 2006 18 (571) 1 December 2006)

Refugee Council, 'The Dublin Convention on asylum applications: What it means and how it’s supposed to work' (August 2002, London)

Secretary of State for the Home Department, ‘Faster, Fairer, Firmer: A Modern Approach to Immigration and Asylum’ (Cm 4018, July 1998)

UNHCR, 'Background Paper No. 2: The application of the “safe third country" notion and its impact on the management of flows and on the protection of refugees' (Geneva, May 2001)